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Mr. Michael Jewell To: 13 The Service expects that incidental take of delta smelt will be difficult to detect or quantify for the following reasons: the small size of adults and larvae, the difficulty of detecting delta smelt in their turbid aquatic habitat, and the low likelihood of finding dead or impaired specimens. The Service anticipates that the extent of incidental take will be minimized due to the proposed conservation measures and low relative abundance. Due to the difficulty in quantifying the number of delta smelt that will be taken as a result of the proposed action, the number of acres of affected habitat becomes a surrogate for the species that will be taken. The Service anticipates that all individual adult delta smelt in 4.52 acres of the action area may be subject to incidental take in the form of harm as described in this biological opinion (1.52 acre of fill in the footprints of the closure structures; 3 acres of temporary loss in the construction area of the closure structures). As for the effect of tidal gate operations on the 238 acres of SWH east of the closure structures that would be seasonally and diurnally affected by gate operation, incidental take of delta smelt will be difficult to evaluate directly. Because of the extremely low population of the species, sampling is unlikely to detect smelt even if they were present. Any such detections will mean that take is occurring and our analysis requires re-evaluation. Initially, the Corps will develop and conduct a fixed term of focused pre- and post -project sampling within the affected sloughs required as a term and condition of this biological opinion. We acknowledge that the effects are partial, and would be offset by purchase of credits. We anticipate incidental take of two (2) adult or juvenile delta smelt for the area affected by the closure structures. Detection of two adult or juvenile delta smelt in either Smith Canal or Fourteenmile Slough during the focused sampling required by the Corps or Applicant under Term and Condition #3, and reported under Reporting Requirement #4c, or detected within these waters by other independent sampling after the project has been completed, will mean that the smelt is being or could be affected by the project in excess of the expected effects in these locations. 12. CHANGE the following in Terms and Conditions, on p. 33, as follows: From: For each discrete phase or construction contract, after designs are completed but before commencement of bidding or construction, the Corps will submit to the Service: (a) a pre -construction accounting of the actual amount of listed species habitat which will be temporarily and permanently affected by that phase of the project, specifically (i) areas of upland and aquatic habitat for the snake, (ii) numbers of elderberry shrubs and stems in the diameter classes considered habitat for the beetle in accordance with the Conservation Guidelines, and (iii) areas of Shallow Water Habitat as habitat for the smelt affected by the project including the footprint of proposed gate structures, the operational periods of such gates, and the area(s) isolated by such gates; (b) a cumulative accounting of the effects on listed species habitat of all phases constructed to date; (c) a narrative describing how the already constructed plus additional proposed work effects fall within the take limits described in this biological opinion; (d) documentation of the acquisition of credits or completed separate construction of any required compensation habitat needed to offset the effects of any proposed project construction; (e) its approved ETL variance for that phase, with a narrative explaining how it is consistent with the project